When a creditor seeks to recover a debt, he may resort to compulsory enforcement procedures, which are often perceived as a direct threat to the debtor's assets. However, French law has established a series of safeguards to maintain a balance and prevent debt collection from leading to total destitution. The law does not leave debtors destitute; it organises their defence and safeguards their fundamental rights. This article provides an overview of the main debtor protection mechanisms, from unseizable assets to possible remedies, with each point covered in greater detail in separate articles. For an overall understanding of rights and protection of the seized debtorIt is essential to be aware of these legal safeguards. A lawyer specialised in enforcement is an indispensable ally for navigating this complex subject.
Unseizability of assets: an essential barrier for creditors
The principle is that all of a debtor's assets can be used to secure his debts. This is the creditor's general right of lien. However, this principle is far from absolute. The law establishes lists of assets and income that are exempt, in whole or in part, from prosecution by creditors, in order to guarantee debtors and their families a decent standard of living.
Assets that cannot be seized by their nature or by provision of the law
Some assets are considered so essential that they are protected from seizure. These include movable assets necessary for the debtor's life and work, such as clothing, bedding, work tools and foodstuffs. A significant proportion of income is also protected. Salaries, retirement pensions and unemployment benefits can only be seized in proportions set by a legal scale. The aim is to leave the debtor with a minimum sum to live on, equivalent to the amount of the RSA for a single person, known as the unseizable bank balance (SBI). To find out more, read our detailed article on unseizability of income and assets.
Specific protection of the entrepreneur's assets
To encourage economic initiative, the legislator has introduced specific protection for sole traders. The best known is undoubtedly the automatic unseizability of the principal residence for business debts. This measure has been extended to other property not used for business purposes, subject to declaration. These mechanisms make it possible to separate personal assets from business assets, thereby limiting the risks incurred. You can find out more about this asset shield in our guide on unseizability of the principal residence.
Property protected by immunity from execution
Some entities enjoy immunity from seizure. This is the case for the State, local authorities and public establishments. This protection also extends, under certain conditions, to foreign states and international organisations. In principle, it is impossible to seize the assets of these public bodies, so creditors are obliged to follow specific recovery procedures. These special rules are explained in our article on immunities from execution.
Adjusting procedures: adapting enforcement to the debtor's situation
In addition to protecting assets, the law adapts the procedures themselves to take account of the difficulties that debtors may encounter. The aim is to find pragmatic solutions that allow both the creditor to be paid and the debtor to survive economically.
Managing the debtor's economic difficulties
When an individual finds it manifestly impossible to meet their non-business debts, they can benefit from procedures for dealing with over-indebtedness. These can lead to a recovery plan with rescheduling, or even partial or total cancellation of debts in the most critical cases, through a personal recovery procedure. These mechanisms offer a genuine second chance to debtors acting in good faith. To find out more, read our analysis of over-indebtedness and personal recovery. The judge may also grant payment deadlines, known as periods of grace, of up to two years.
What happens to the debtor during the proceedings
The seizure procedure is not a blank cheque given to the creditor. The law punishes abuses, such as a seizure that is disproportionate to the amount of the debt. What's more, debtors are encouraged to find less brutal solutions than a forced auction. In the event of the seizure of movable property or real estate, the debtor can ask the judge for authorisation to sell the property himself out of court, in order to obtain a better price. These options are described in detail in our articles on optimising the sale of seized assets and on the foreclosure process.
Protection of the debtor's person: respect for fundamental rights
A seizure procedure is an ordeal that affects the very person of the debtor. The legislator has therefore introduced safeguards to ensure that enforcement is carried out with respect for the dignity and rights of the individual.
Respect for personal rights
The intervention of a judicial officer is strictly regulated. Enforcement measures may not take place on Sundays or public holidays, or at night (between 9pm and 6am). In addition, professional secrecy and respect for privacy must be maintained. For example, bailiffs may not disclose the grounds for a conviction to third parties. Information may be sought on the debtor's assets, but this is limited to what is strictly necessary for collection purposes. Our article on protection of the debtor's privacy details these guarantees.
Housing schemes
Eviction from your main home is one of the most feared consequences of an unpaid debt. Specific safeguards exist to prevent this from happening. The best known is the "winter truce", which suspends evictions from 1 November to 31 March each year. The judge can also grant delays of between three months and three years if the debtor and his family cannot be rehoused under normal conditions. The authorities are systematically informed in an attempt to find alternative accommodation.
The debtor's remedies and defences against enforcement
Being subjected to enforcement proceedings does not mean being deprived of all means of defence. Debtors have a number of ways of challenging the measure and asserting their rights, often with the help of a lawyer.
Contesting the legitimacy of the debt or security
The first line of defence is to verify the validity of the claim itself. The debtor may dispute the amount claimed, the existence of the debt or the validity of the writ of execution on which the seizure is based. If the writ of execution contains irregularities, the procedure may be called into question. It is also possible to argue that the debt is time-barred.
Procedural incidents and remedies
The seizure procedure must comply with precise formalities. Any error or omission by the bailiff may constitute a procedural incident and justify a challenge before the enforcement judge (JEX). This judge is responsible for ensuring that seizures are carried out properly and that the debtor's rights are protected. It is the judge who has jurisdiction to rule on all difficulties relating to enforceable titles and disputes arising in connection with forced execution.
Support from a lawyer with expertise in enforcement procedures
Enforcement procedures are technical and the stakes are high. Defending yourself alone is often illusory when faced with professional creditors and the complexity of the applicable rules. The involvement of a lawyer is more than just help; it is a necessity in order to analyse the situation, identify the flaws in the opposing procedure and implement the most appropriate defence strategy.
Enforcement law offers debtors a wide range of protections, but implementing them requires a precise knowledge of the rules and deadlines. For a complete analysis of your situation and to defend your rights effectively, the assistance of a law firm is essential. Do not hesitate to contact our team for a individual support.
Frequently asked questions
What is the principle of unseizability?
The principle of non-seizability is a legal protection that prevents creditors from seizing certain assets or income from a debtor. It is designed to ensure that debtors and their families retain the minimum resources they need to live with dignity, such as part of their wages, family allowances or assets essential to everyday life.
Can my principal residence be seized?
The principal residence of a sole trader is automatically exempt from seizure for business debts. For personal debts, it can in principle be seized, but the procedures are long and regulated, and solutions such as amicable sale may be considered to avoid forced sale.
What should I do if financial difficulties prevent me from paying my debts?
If you are an individual who is unable to repay your debts, you can file an over-indebtedness application with the Banque de France. This procedure can suspend seizures and lead to an appropriate repayment plan, or even the cancellation of your debts.
Can a bailiff do everything?
No, the bailiff's actions are highly regulated. He cannot intervene at night, on Sundays or on public holidays without the authorisation of the judge. He must respect your privacy and can only seize goods that are authorised by law, leaving you with the items that are essential to your daily life.
Can I sell a foreclosed property myself?
Yes, the law encourages you to do so. In the case of a seizure of movable or immovable property, you can ask the judge for authorisation to proceed with an out-of-court sale. This often enables you to obtain a better price than at a public auction and to settle your debt under better conditions.
What is the first reaction to a seizure?
Don't remain passive and don't delay. The first thing you should do is contact a lawyer who is an expert in enforcement procedures. The time limits for contesting a seizure are often very short, and only a rapid legal analysis will enable you to identify your defence options and protect your rights effectively.
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